Procedure - Civil proceedings in State and Territory Courts - Ending proceedings early - Summary judgment for defendant: stay or dismissal of proceedings - Other matters - Evidence not admissible on the question whether the pleadings (a) disclose any reasonable cause of action; or (b) show that the cause of action is frivolous or vexatious under r 259 - Evidence is admissible on the questions arising on an application under r 367.

Hall v Hall [1996] TASSC 87 at [2] followed.

Judgment Number: [2025] TASSC 59

1. These are my reasons for granting the interlocutory application brought by the defendant and for making an order dismissing the plaintiff's action against the defendant. In these reasons I will refer to the plaintiff as Mr Ringrose and to the defendant as the Council.
2. This is an application for summary judgment brought by the defendant seeking judgment under r 367 on the basis that the action is frivolous or vexatious: r 367(2)(a). Alternatively, the defendant applied for an order under r 259 that the action be dismissed, permanently stayed, or the statement of claim be struck out, and that judgment be entered for the defendant accordingly.
3. The Council's application for summary judgment under r 367 was brought out of time and it has therefore sought an extension of time for bringing that application. For the reasons set out below, I have granted that application.

1. For the following reasons, I propose to make an order extending the time within which the defendant may apply for summary judgment under r 367(1).
2. The legal principles to be applied to the determination of whether time should be extended are set out at par 8 of the Council's submissions. I accept these submissions. In Burnett v Fitzgerald and Browne [2017] TASSC 31 at [10]- [12], Brett J observed that there are four matters to be considered, no one factor being determinative and the weight to be attributed to each factor being dependent on the circumstances of the case:
   1. the length of the delay;

1. whether the applicant has a "fairly arguable case" (in this case this means a fairly arguable case on the application for summary judgment under r. 367); and

1. the extent of any prejudice suffered by the respondent if the application for the extension is granted.

1. Rule 367(1) provides that a defendant may apply for summary judgment within 10 days after filing an appearance. An appearance is to be filed within seven days of proceedings being served within Tasmania: r 98. The writ and statement of claim were served on the Council on 21 August. The Council had until 28 August to file an appearance, but it did so earlier, on 22 August, and therefore the 10 day period under r 367 expired on Monday, 1 September. If the Council had filed an appearance on the last possible day, it would have had until 8 September to file this application for summary judgment which was filed on 9 September 2025.
2. It can be seen that the period of delay between the stipulated events is so short as to be inconsequential No lack of diligence is demonstrated. On four of the days in question, the Registry was closed: see the Council's outline of submissions at par 11.

1. The Council has a strongly arguable case on the application for summary judgment, having regard to the content of the writ, the statement of claim and the materials filed by the parties.
2. I am satisfied that the Council has an acceptable reason for delay in bringing the application. Upon being instructed to act on 22 August 2025, an appearance was filed immediately. Thereafter, the Council's legal advisor devoted his time and effort to dealing with the substance of the issues raised in the proceedings and instructing counsel to advise. Those matters appear to have taken priority and the time limit under r 367(1) was overlooked. The reason for delay is satisfactory.
3. I cannot discern any prejudice if the application to extend time is granted. No specific submission in opposition to the extension was made.
4. I am satisfied that this is a proper case in which to exercise my discretion to extend the time within which the defendant may apply to a judge for summary judgment.
5. I order that the time within which the defendant may apply for summary judgment under r 367 is extended until 9 September 2025, being the date when this interlocutory application was filed.

1. In relation to the Council's application for summary judgment under r 367, it invites a finding that Mr Ringrose's action is frivolous or vexatious. I propose to admit the affidavits read by each party as evidence on the application under r 367. I will not have any regard to those affidavits on the questions arising under r 259 as to whether the pleadings (a) disclose any reasonable cause of action; or (b) show that the cause of action is frivolous or vexatious. Those questions depend upon the Court's views about the text of the pleadings and they are not questions about which evidence is generally admissible. This is consistent with the approach taken by Zeeman J in Hall v Hall [1996] TASSC 87 at [2] in relation to the cognate former Rules of the Supreme Court 1965, Orders 16 (now r 367) and 28(4) (now r 259) respectively. I respectfully agree with and follow Zeeman J's approach.
2. I wish to address an observation made by senior counsel for the defendant concerning a matter of interest, but which does not bear materially upon the determination of the present application. It appears to me that the difference between dismissing an action and entering judgment under r 259 because "a pleading ... shows that that the cause of action ... is frivolous or vexatious" (on the one hand) and granting summary judgment under r 367 "if satisfied that ... the action is frivolous or vexatious" (on the other hand) relies primarily in the nature of the deficiency being addressed and the consequential procedural approach. The enquiry under r 259 is a narrow, pleading-focused threshold test which does not involve the consideration of any evidence. It is concerned only with the content of the pleading itself. By contrast, the enquiry under r 367 addresses the merits of a claim considering both the pleadings and the available evidence. The complexity and the potential nature of factual disputes are relevant, and the test involves a broad merits-based determination. The applicant for summary judgment must demonstrate that even taking the opponent's case at its highest, there is no arguable claim.

1. By writ and statement of claim filed 21 August 2025, Mr Ringrose sued the Council for:

"unjust/unjustified fees and charges in the sum of $31,826.22; and

1. It appears to be common ground on this application that the Council has made various demands of Mr Ringrose to pay rates, taxes and related charges in the accumulated total sum of $31,826.22. Mr Jackson submitted (without challenge) that a part of this amount is the subject of a judgment (or more than one judgment) of the Magistrates Court sitting in its Civil Division, but no execution action has yet been taken.
2. During the course of argument, Mr Ringrose clarified what his claim was really about: he said that he is not claiming that the Council should pay him $31,826.22, but his central point is that this amount is a 'fine' and he seeks a declaration that the rates and charges making up that sum are unjust, unjustified, unlawful and unenforceable because of the various points he makes about the Local Government Act 1993.
3. The statement of claim invokes the following jurisdiction:

This proceeding is commenced in the Supreme Court of Tasmania pursuant to:

(i) Commonwealth of Australia Constitution Act 1900/1901

(ii) Bills of Exchange Act 1909

(iv) The will of the People in Referendum of both 1974 and 1988

(v) Bill of Rights Trade Practices Act 1974 (Commonwealth)

(vi) Competition and Consumer Act 2010 (Australian Consumer Law - Commonwealth)"

1. Mr Ringrose complains that the council has failed or refused to provide any lawful justification, documentation, or evidence in response to his notices containing his demands for clarification from the Council about its power to levy rates under the Local Government Act 1993. He asserts that he is therefore entitled to the following remedies:

" a) an injunction restraining the defendant from further unlawful action;

b) a declaration that the defendant's charges and demands are null and void;

c) a declaration that the defendant's conduct constitutes unlawful commercial activity in breach of the Australian Consumer Law

d) an order for restitution of any sums unlawfully claimed or obtained;

e) fees to be taxed; and

e) (sic) such further orders as the Court deems just and equitable."

1. Mr Ringrose's affidavit contained certain matters which are in reality, submissions and that is how I will treat them except where he is stating facts within his own knowledge. Mr Ringrose deposes that he is bringing his claim in his sovereign capacity. The affidavit repeats the claims above and thereafter he sets out a series of arguments of a pseudo legal nature, including the following:

"The Plaintiff asserts and relies upon the Constitution of the Commonwealth of Australia as the supreme and controlling law of this land. All legislative, executive, and administrative powers exercised within the Commonwealth derive their validity solely from that Constitution and must remain subject to its authority. No municipal body, local council, state agency, or other subordinate entity may act outside the scope of the Constitution or exceed its delegated powers.

The Defendant, Clarence City Council, is a municipal entity deriving its existence and authority from subordinate legislation. It possesses no inherent sovereignty or law-making power independent of the Constitution. Any act by the Defendant that purports to impose charges, obligations, or legal burdens upon the Plaintiff must be strictly and lawfully founded upon a valid delegation of constitutional authority.

The Plaintiff asserts that the Constitution of the Commonwealth of Australia is the supreme law of this land. Any legislative instrument or act purportedly authorised under the Great Seal of Tasmania is subordinate to that Constitution. Royal Assent under a state seal does not grant a state or its instrumentalities authority to act contrary to, or in excess of, constitutional limits. To the extent that any state legislation or subordinate instrument is inconsistent with the Constitution, it is invalid and of no effect.

The Plaintiff notes that proposals to grant constitutional recognition to local government have been twice put to the Australian people and twice rejected. Local councils therefore hold no constitutional status and exist solely as statutory corporations under state legislation. Any act undertaken by a local council must strictly conform to the Constitution of the Commonwealth of Australia and the limited delegated authority conferred by state Acts. Where such acts exceed or conflict with that authority, they are ultra vires, invalid, and of no legal effect.

In this case, the Defendant has acted beyond that authority, rendering its actions ultra vires, unlawful, and void. The Council's conduct constitutes an exercise of power without lawful foundation and in direct contravention of the supremacy of the Constitution.

The Plaintiff therefore seeks the intervention of the Court in equity to restrain the Defendant from continuing such unlawful acts and to uphold the constitutional order. Equity, being the guardian of lawful power and protector against unconscionable conduct, must act to prevent further harm and enforce the supremacy of the Constitution over subordinate entities."

1. In his oral submissions, Mr Ringrose said that he did not press the claim under the Australian Consumer Law. This was an appropriate concession. When a Council levies rates, it does so under the power conferred upon it by the Local Government Act 1993, particularly the power contained in s 86A which expressly provides that when a council charges rates, that constitutes taxation and it cannot therefore be characterised as charging a fee for a service.
2. In relation to the other sources of jurisdiction set out in part 2 of the statement of claim, there is no material before me which could possibly attract their operation. None of the acts of parliament in that list has anything whatsoever to do with the subject matter of this dispute.
3. Mr Ringrose's principal dispute relates to the power of the Council to charge rates. He submits that at a referendum in 1988, the Australian people said "no" to the question whether they 'approved' "the establishment of local government". Firstly, I do not accept that was a question put at the 1988 Australian referendum. Secondly, I take judicial notice that there has never been any Australian referendum which has returned a result which has had the effect of undermining the Tasmanian Parliament's power to make laws in respect of local government.
4. Mr Ringrose submitted that the Australian Constitution "prohibits the Local Government Act 1993 from existing". It is clear from Mr Ringrose's materials that this submission depends on the point which I rejected, above, about the result of the 1988 referendum and its impact on the Tasmanian Parliament's ability to make laws with respect to local government. Mr Ringrose submitted that because local government is not specifically recognised under the Australian Constitution, the Tasmanian Parliament was without any source of power to pass the Local Government Act 1993 and that it is therefore in conflict with the Constitution. Mr Ringrose referred to the Constitution, s 106. He submitted that because the Constitution does not include provisions about local government, the Tasmanian parliament cannot make laws with respect to local government. This is not an arguable proposition. The Tasmanian Parliament plainly has very extensive plenary powers to make laws in relation to local government, a matter clearly reflected in the Constitution Act 1934 (Tas), s 45A.
5. In response to one of Mr Ringrose's demands of the Council to provide documentation verifying its authority to make its claims for rates "against the living Man", Council included the following passage (see the letter sent to Mr Ringrose by the Council on 15 June 2022, annexed to Mr Nelson's affidavit):

"While the tier of local government is not recognised in the Constitution, the States of Australia are sovereign states and each has the power to legislate in relation to local government. Section 45A of the Constitution Act 1934 (Tas) establishes in Tasmania system of local government with municipal councils elected in such manner as Parliament may from time to time provide. Section 45A(2) further provides that each municipality shall have such powers as Parliament may from time to time provide, being such powers as Parliament considers necessary for the welfare and good government of the municipal area. The provisions of Part 3 and Schedule 3 of the Local Government Act 1993 (Tas) establish the Clarence municipality and the Clarence City Council."

1. With respect to the author of the letter, that is accurate. Further, by making the Local Government Act the Tasmanian Parliament conferred power on a Council to levy rates under s 90; and under Part 9 of the Act, parliament imposed liabilities on ratepayers (as defined) for the payment of rates in relation to land owned by that person. There is no dispute in this case that Mr Ringrose is an owner of the land which is the subject of the demand for rates. In his oral submissions, Mr Ringrose submitted that land is transferred from the Crown to the people in fee simple and that "we own the land completely and the Crown has no authority" and that "the only authority to tax land is under the Crown". I reject this plainly untenable submission.
2. I have considered the matters raised by the statement of claim in relation to jurisdiction as set out at par 2. However, there can be no doubt at all that Mr Ringrose's pseudo legal arguments have no basis whatsoever in law. It is very clear that there is no possible legal basis upon which unmet demands by Mr Ringrose for the Council to explain the legal justification for charging him rates, could support any of the claims which he makes. The Council's legal authority to charge rates is clearly set out in the Local Government Act.

1. In relation to his claim for 'Usufruct of $150,000', Mr Ringrose submitted that he believed that amount that to be a "standard charge for that particular discretion". Senior counsel for the defendant referred me to the case of Commonwealth v Yarmirr [1999] FCA 1668 in which the expression "usufructuary right" was considered by the Federal Court of Australia. Beaumont, von Doussa and Merkel JJ referred with approval to a passage in the judgment of Kirby P (as he then was) in Mason v Tritton (1994) 34 NSWLR 572 at 580-2 where he considered the concept of fishing "as a usufructuary right to the use, possession and occupation of land" of another:

"The term 'usufructuary right', as asserted by the appellant, commonly conveys the entitlement of an individual to use, and take benefit from, land belonging to another. A usufructuary is one who has the use and reaps the profit of anything. The term extends to 1 who has the temporary use and reaps the fruits or profits of an estate, benefice, office etc, legally belonging to another or others. An example of the United States formulation may be found in the following extract from Marshall v Marshall 735 SW 2d 587 (1987) at 598: 'a "usufruct" is the right of using and enjoying and receiving the profits of property that belongs to another, and a "usufructuary" is a person who has the usufruct or right of enjoying anything in which he has no proprietary interest.'"

1. It can be readily appreciated that the concepts discussed, above, have no possible application to a dispute about whether a council can levy rates and whether a landowner is liable to pay them. It is absolutely apparent that Mr Ringrose's claimed remedy of 'usufruct' is misconceived and this part of his claim presents no 'real question to be tried' and must necessarily fail: Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 at [53].

There will be summary judgment for the defendant

1. For the following reasons, I grant the defendant's interlocutory application and make the orders sought as explained more fully, below.
2. The relevant legal principles are not controversial. In summary, the exercise of powers to summarily terminate proceedings must always be attended with caution, whether on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence: Spencer (above) at 131 [24]; Woods v Deputy Commissioner of Taxation [2011] TASSC 68 per Porter J at [19]-[24]. Provisions permitting the entry of summary judgment, such as the ones presently under consideration, are to be "understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail": Spencer at [53].
3. The plaintiff has not identified, nor advanced, any factual or logical basis upon which a Court might lawfully order any of the remedies sought by Mr Ringrose. The jurisdiction invoked by Mr Ringrose's statement of claim in par 2 bears no relationship whatsoever to the subject matter of the proceedings. It is clear that Mr Ringrose's case is brought as a fundamental attack on the right of the Council to levy rates - and upon his liability to pay them. The facts pleaded in par 3 of the statement of claim are that the Council refused to respond to his demands that the council variously 'verify' its demands and to provide him further and better particulars of its authority and jurisdiction to require him to pay rates. It appears that Mr Ringrose has not received any satisfactory response and as a consequence, he issued these proceedings and seeks the remedies as set out at par 4. There is no merit whatsoever in any aspect of the claim as endorsed on the writ or pleaded in the statement of claim.
4. In light of the findings made in these reasons, I conclude that Mr Ringrose's claim is so obviously untenable that it cannot possibly succeed, in the sense contemplated by the cases referred to by Holt AsJ in Strang v Johnston, McGee and Gandy Pty Ltd [2014] TASSC 56 at [13]. Mr Ringrose's claim does not raise any debatable question of law: Dey v Victorian Railway Commissioners [1949] HCA 1; 78 CLR 62 at 91. It is clear that the proceedings present no real question to be tried: Fancourt v Mercantile Credits Ltd [1983] HCA 25 per the Court at [27]; Clark v AWC Pty Ltd [2022] TASSC 44 at [21]. I am satisfied that the entire proceedings should be summarily dismissed: Dey at 91-92.
5. In these circumstances, Mr Ringrose's claim is to be characterised as a frivolous or vexatious action. The claim is presented in such a way that no amendment could cure its defects. There is no conceivable basis in fact or in law upon which the plaintiff could raise an arguable case for any of the relief outlined in his writ and statement of claim.
6. Because of these findings, I am satisfied that the continuation of the proceedings will impose a significant and unfair burden on both the defendant and the resources of the Court. In that sense, the continuation of the proceedings will be so prejudicial or damaging as to be vexatious because they will produce significant and unjustified cost and expense associated with the activities necessarily associated with the progress of the action to trial: see Mudie v Gainriver Pty Ltd (No 2) [2002] QCA 546 at [35]- [37].
7. I am mindful that ordinarily a party must not be denied an opportunity to place his case before the Court, but here, the degree of certainty about the ultimate outcome in this case is so high, that it would be wrong not to grant the defendant's application. I have made a certain and concluded determination that the proceeding would necessarily fail: Spencer at [53].
8. In my view, the better course is to proceed under r 367. I therefore make an order under r 367 that judgment is entered for the defendant. However, even if I was wrong in coming to that conclusion, I am satisfied that it would be proper to make an order under r 259 that the action be dismissed and that judgment be entered accordingly on the dual bases that the pleading (i) does not disclose a reasonable cause of action; and (ii) is frivolous or vexatious.